Commission for Commission des Public Complaints Against the plaintes du public contre la Royal Canadian Mounted Police Gendarmerie royale du Canada Evolution of Use of Force by Police in the Canadian Context ______________________________________________________ Prepared by Dr. William Beahen for the Commission for Public Complaints Against the RCMP Delivered at the CACOLE Conference by Dr. Beahen June 16, 2008 Introduction When I was originally approached by the Public Complaints Commission for the RCMP to write a proposal on the subject we are examining, I confess to being daunted by the task. There is no scholarly and comprehensive history of policing in Canada or of any other country as far as I know. Yet this paper would presume upon a broad knowledge of an issue which lies at the heart of police operations everywhere. That is, how to ensure compliance of suspects and prisoners who may resist the authority which impels them to surrender their freedom at least temporarily. However, I have been studying and writing about the history and current operations of police in Canada, mainly the RCMP, for 29 years, so I found the challenge compelling. What in the end I promised the Commission and what I hope that I have achieved here is to deliver an informed overview of the subject which will help concerned parties understand how police, the public and civilian review agencies evolved and grappled with the issue of use of force up to the introduction of conducted energy devices. While this study will concern itself primarily with the Canadian context, it is useful to introduce comparative information on the experience elsewhere and I have used the United States for this purpose. Ever since John Locke introduced the concept of government being a social contract between the people and those who govern them, police have been an essential agency in ensuring that the contract is exercised in as peaceable a manner as possible. It is important then that police officers be chosen for their integrity, good judgement and capability to fulfill their functions. Further, they must be trained to exercise their unique role in a highly professional manner. But no amount of astute recruitment or comprehensive training will eliminate the element of risk for the officers or to the public in dangerous situations requiring individual discretion. Hence we have a long list of officers who have died in the line of duty. As a result, society continues its efforts to provide 2 officers with the proper techniques and improved weaponry which will reduce the level of risk to all involved in dangerous situations. It is this process and its efficacy that I will present today. The ancestry of Canadian policing lies with Britain, where a constabulary was established responsible to the Crown but representative of the communities where they served. These constables were responsible for maintaining order in the community from investigating illegal activities to arresting criminals. In turn, the constables assisted and reported to local Justices of the Peace who were charged with the application of the law and the maintenance of justice. This incipient system evolved as society, commerce and demography compelled. London was the locus for a struggle for centralization resting authority from the hands of parish constables and paid magistrates. This laid the basis for the London Metropolitan Police under the authority of the Home Secretary, who in the 1820s was Sir Robert Peel. This man regarded as the father of professional policing instituted the Bow Street day patrol in 1822 and in 1829 transformed this small beginning into a uniformed force of 3,000 officers of the London Metropolitan Police. Peel's reform was far from simply administrative. He elaborated nine policing principles which stand today as the foundation of the concept of civil police services. The central tenant of this code was his dictum that “the police are the public and the public are the police.” 3 There are two other principles which are directly applicable to subject at hand today: “To recognize always that the extent to which the cooperation of the public can be secured diminishes, proportionally, the necessity of the use of physical force and compulsion for achieving police objectives.” And “To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public cooperation to an extent necessary to secure observance of law and to restore order; and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.” Coincident with and soon after police professionalization in London, came reform to policing in the rural areas and in smaller urban jurisdictions. Chief constables were appointed responsible to magistrates or to groups of citizenry and they in turn hired constables. Freedom from political influence became a hallmark of these policing services. This British model was adopted and adapted in the British North American colonies. In the immediate post-conquest era in Lower Canada, British troops were the principal bulwark against disorder. But British governors and administrators also relied on an existing system of authority which rested on captains of militia, officials within the seigneuries which had organized the habitants for defence but also promoted order. The seigneurs themselves acted in the capacity of magistrates. In the rest of the British colonies, Justices of the Peace were appointed, usually merchants and businessmen, who were responsible for settling civil disputes but also for holding court on criminal offences. As there were few detention facilities in the late 18th and early 19th centuries, fines were often used for punishment but corporal punishments were common from the lash to stocks and of course hanging. In the more serious cases 4 Justices of the Peace acting alone or in pairs were responsible for establishing the facts but judgements would be rendered by juries. As in Britain, the work of the Justices of the Peace came to be assisted by the engagement of constables sometimes paid but often voluntary. Another source of order in growing towns and cities of the colonies were the night watches organized to patrol principally to alert the populace to outbreaks of fire but also to report on suspicious doings and characters of suspect repute. Again, at first these watchmen tended to be volunteers but then were paid out of taxes. As cities were incorporated police forces were formed. In the pre-Confederation period Montreal, Québec City and Toronto founded police forces in the 1830s which grew in size and organization in the 1840s and the 1850s. In the 1860s Montreal's force was the largest in North America with 150 members. Kingston formed a police force in 1841, Ottawa in 1855, and Halifax in 1864. With the formation of these services came the building of station houses and attendant lock-ups or gaols where suspects could be held and the guilty punished. In British Columbia two community-based police services, one on Vancouver Island and the other at Fort Langley, combined in 1858 to form a police force for the colony laying the basis for a provincial police force which followed Confederation. With Confederation of the colonies came the British North America Act of 1867. This act divided responsibility for the justice between the federal government and the provinces. The former was given the power to enact criminal law with its offences and punishment. That left the provinces with the responsibility for the administration of justice and police forces. 5 Provincial police forces were established in Quebec and Manitoba in 1870 and in British Columbia in 1871. In Ontario there was resistance to a provincial police from the municipalities which were empowered to enforce federal law, provincial statutes and municipal bylaws. However, under provincial law detectives were hired, some constables and a frontier police. These became members of the Ontario Provincial Police when it was finally organized in 1909. An important change in law occurred in 1893 when parliament passed the Criminal Code of Canada. Up until this time the justice system in Canada as in Britain was based on common law, precedents established by decisions in previous cases and on legislated statutes regarding crime. This code consolidated and systematized common law and previous statutes giving criminal law coherence for the first time. Section 25 of the Criminal Code had great significance for police officers from this time forward. It clearly established that anyone, including police officers, who is required or authorized to enforce the law, was entitled to use such force as necessary for that purpose. There were two important qualifications to that authority. First, a person using force intended or likely to cause death or grievous bodily harm is only justified to use this force if it is necessary to protect him or others from death or grievous bodily harm and that he is responsible for any excess force employed. Second, the police officer has the right to use only as much force as is necessary to prevent the escape of persons fleeing to avoid arrest. In 1873, Parliament authorized the formation of the North West Mounted Police (NWMP), a force to bring policing to the vast stretches of the Northwest Territories including what were later the provinces of Alberta and Saskatchewan. The principal reason for the creation of the NWMP was to establish sovereignty and law and order in advance of settlement coming from the east. This would protect Canadian territory from the appetite of the United States to expand northwards and would establish good relations with the 6 Aboriginal people avoiding the warfare which accompanied American and Indian contact. In 1874, the 275 members of the NWMP marched west en masse complete with weaponry, including artillery, lances, swords, revolvers and rifles.